The
Department of Commerce, Patent and Trademark Office, Alexandria, Virginia
(Employer or PTO) filed a request for assistance with the Federal Service
Impasses Panel (Panel) to consider a negotiation impasse under the Federal
Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between
it and the Patent Office Professional Association (Union or POPA).

After
investigation of the request for assistance, the Panel determined that the
dispute, which involves a telework plan for employees outside the Patent Corps
who provide various sorts of technical and administrative support, should be
resolved through an informal conference with Panel Member Grace Flores-Hughes.
The parties were informed that if no settlement was reached, Member
Flores-Hughes would notify the Panel of the status of the dispute, including the
parties' final offers and her recommendations for resolving the impasse. After
considering this information, the Panel would resolve the dispute by taking
whatever action it deems appropriate, which could include the issuance of a
binding decision.

Pursuant
to this procedural determination, Member Flores-Hughes convened a 2-day meeting
with the parties on October 19 and 20, 2004. During those sessions, the parties
were able to resolve numerous provisions in a telework agreement. However, at
the close of the meetings, approximately 15 provisions remained in dispute. The
parties submitted post-conference statements in support of their final offers on
these issues.1/
Member Flores-Hughes has reported to the Panel and it has now considered the
entire record, excluding the documents attached to the Employer's
post-conference statement of position.

BACKGROUND

The
Employer's mission is to examine applications for, and issue patents, and
register trademarks. The bargaining unit consists of approximately 3,800
professional employees, most of whom hold positions as patent examiners. The
dispute herein concerns the Non-Patents Telework Program (NPTP), a plan for
telework that would affect approximately 170 employees in the Office of the
Chief Information Officer (CIO) and the Chief Financial Officer (CFO). The
majority of these employees hold positions as computer scientists/engineers
assigned to the CIO; other positions include accountant, economist, procurement
specialist, contract specialist and librarian.2/
In January 2003, the parties entered into an agreement which permits
approximately 900 patent examiners to telework 1 day a week.3/
The parties agreed that a telework program for employees who are not part of the
Patents Cost Center (patent examiners) would be negotiated separately. The
parties are still litigating their long-standing dispute over whether there is a
valid collective-bargaining agreement in effect between them.

ISSUES AT IMPASSE

There
are 15 unresolved provisions. They include the following issues: (1) the
frequency of telework; (2) whether librarians who work in the Patent Cost Center
should be covered by the NPTP; (3) whether employees at the GS-12 grade level
should be permitted to telework; (4) whether employees who work flexible work
schedules should be able to retain those schedules on their telework days; (5)
whether employees on telework should have to continue working on days when the
Federal Government closes due to poor weather conditions or for other reasons;
(6) the frequency with which employees on telework should have to check their
office voicemail and maintain other communications with co-workers and
customers; and (7) whether the Employer should provide the Union with the amount
of time bargaining-unit employees spend teleworking, and how frequently the
names of such employees should be provided.

POSITIONS OF THE
PARTIES

1. The Union's
Position

In
essence, the Union proposes that employees deemed eligible for telework be
permitted to work at alternative sites either once a week or once during a
bi-week, on a fixed, recurring schedule; if an employee is ineligible to
telework once or twice during a bi-week, the employee may request to telework on
an irregular basis, with supervisory approval. Eligibility to participate in
telework would be based on the Employer's analyses of employee positions to
estimate the percentage of time spent on job junctions that could be performed
from an alternate work site. In this regard, employees with positions having 25
percent or more of work time spent on job functions appropriate for telework
that could be performed in a single day normally would be permitted to telework
1 day per week, up to 10 hours per day; employees with positions having less
than 25 percent, but more than 15 percent, of work time on job functions
appropriate for telework that could be performed in a single day normally would
be permitted to telework at least 1 day per bi-week, up to 10 hours per day.

The
Employer would be required to reduce to writing its rationale for denying an
employee request to participate in the NPTP. Employees would not be permitted to
telework during weeks in which office priorities require them to perform greater
than 75 percent of their time on-site at the Employer's premises. Core hours may
be modified only during weeks when an employee actually teleworks, and not
merely when the employee "expects to" telework. If an employee
teleworks on the same schedule each week, a single notification of that schedule
to the supervisor and a single approval of that schedule would be adequate. On a
quarterly basis, the Union would be provided with the names, organizational
units and telework dates for each employee participating in the NPTP. To
participate in the telework program, employees would have to be at least a GS-12
and at the full performance level for their position. Employees who already are
working a flexible work schedule would not be required to change schedules in
order to participate in the NPTP, nor would employees be denied entrance into a
flexible work schedule because they are participating in the NPTP. Teleworkers
who use their own telephones would be required to have work calls forwarded to
their telephones on telework days or give their phone number to their supervisor
and coworkers. Office voicemail and e-mail would have to be checked on a
telework day. Generally, employees who telework would be given advance notice of
at least 2 business days for all meetings, legal lectures, training, or other
events that would require their attendance at the Employer's worksite. In cases
of Federal Government closures, Office of Personnel Management (OPM) directives
concerning teleworkers would be controlling.

In
support of its position, the Union maintains that its proposals are consistent
with the telework law, P.L. 106-346, § 359, which allows employees to
participate in telecommuting "to the maximum extent possible without
diminished employee performance," and that the term "eligible
employee" means "any satisfactorily performing employee of the agency
whose job may typically be performed (at an alternate work site) at least 1 day
per week." Numerous affidavits submitted by employees show that they have
job functions conducive to telework 1 or 2 days a bi-week. Ultimately,
management would have the authority to exclude any employee from telework, with
a written denial. The proposal also would provide management with the
flexibility of canceling telework during those weeks when 75 percent of an
employee's work priorities require his or her presence at the Employer's
worksite. Additionally, the Employer would have the option of approving
intermittent requests to telework made by employees whose job functions do not
meet the tests for teleworking on a regular basis. Overall, a more streamlined
process for employees to request approval to telework would be available under
the Union's proposal.

According to the Union, librarians in the 1410 series in the Patent Cost Center
should be eligible to participate in the NPTP because the parties had a
"gentlemen's agreement" at the close of negotiations over telework for
employees on the patents side to include the librarians in an agreement
involving "non-patents"; evidence of this verbal agreement between the
parties is provided by two Union bargaining team members who submitted
affidavits to that effect. Moreover, the NPTP should include employees at the
GS-12 level, when that grade is the full performance level for the position.
There are approximately 17 employees who are in "dead-end" GS-12 jobs
who would be capable of performing their duties from alternate work sites, and
there is no reason to exclude this group from teleworking. Unrefuted evidence
shows that there is very little difference in the performance plans for GS-12
and GS-13 employees who would be covered by this agreement. The portion of its
final offer concerning core hours would provide employees with more certainty
regarding their work schedules during weeks when they telework because it is
based upon what actually occurs rather than on what is expected to occur. Its
proposed wording on voicemail does not set any limits on the number of times a
teleworker would be expected to check office voicemail, unlike the Employer's
proposal which would require employees to check voicemail not more than twice a
day. Since many employees have mobile phones issued to them by the Employer that
fellow workers have the phone numbers of, teleworkers likely would be called
directly on those phones, and could reasonably be expected to check for messages
more than twice a day. Wording that would require the Employer to provide the
Union, on a quarterly basis, with the names of teleworkers, their organizational
units and the days an employee teleworks, is critical to the Union, particularly
if the Panel adopts the Employer's proposal which would allow only ad hoc
telework; in order to monitor participation in the NPTP and, most importantly,
the frequency that employees are permitted to telework, the Union needs specific
data provided by the Employer on a recurring basis.

Under
the Union's proposal, employees would not be required to choose between telework,
and the currently available flexible work schedule options. As OPM has stated,
telework programs work best with schedules having maximum flexibility; in this
regard, one of the goals of telework - to reduce traffic congestion - would be
accomplished best when employees are permitted to retain their flexible work
schedules on days they do not telework. In regard to scheduling meetings at the
Employer's premises which require a teleworkers presence, common courtesy and
good business practice dictate that at least 2 business days' notice should be
given for meetings, etc. which an employee must attend on what otherwise would
have been a telework day; exceptions would be permitted when there is no
opportunity for 2-days' notice and a last-minute meeting is required. As to the
proposal on Federal Government closures, it would ensure that employees in the
NPTP are treated in a manner consistent with the way the Employer treats
teleworkers under the Patent Examiner Telework Agreement, as well as other PTO
teleworkers who do not have union representation. The Employer has not required
teleworkers to continue to work through Government closures in the past. In
addition, because the functions of the CIO and CFO regularly require
collaboration among colleagues during the workday, employees under the NPTP
would be ill suited to telework during a Government closure, as co-workers and
customers at the PTO site would not be present on Government closure days.

2. The Employer's
Position

Essentially, the Employer proposes that employee participation in the telework
program should be based on the number of employees the PTO could allow to be
away from the worksite during normal business hours and still meet customer
service needs and maintain normal functions and performance expectations.
Participants in the program would be permitted to telework for up to 26 days a
year, but no more than 4 days in any month, with supervisory approval. During a
week when an employee expects to telework, management would have the ability to
alter core hours for the employee when the employee works at the PTO site.
Employees would be expected to request to work at home on a given day, with the
request to include the work proposed to be accomplished on that day; the
supervisor would approve in advance the work to be performed on a telework day.
The NPTP would not include librarians in the 1410 series who work within the
Patents Cost Center (although librarians who work in the "non-patent"
CIO area would be covered by the NPTP agreement). In order to facilitate
communication, employees who telework would have to provide their home telephone
numbers to their supervisors and co-workers; furthermore, teleworkers would be
required to check their office voicemail at the beginning and mid-point of the
telework day.

The
Union would be provided with the names of all employees participating in the
NPTP. Participation in the telework program would be limited to employees who
are GS-13s or higher, and at the full performance level in a position covered by
this agreement; participants would have to have the ability to work without
regular supervision, schedule work, meet deadlines and work with available tools
to complete tasks at the alternate worksite, and meet OPM criteria for
eligibility. Written approval would be required for employees to take original
documents and records protected under the Privacy Act to their telework site.
Generally, employees in the NPTP would be given advance notice of at least 1
business day for all meetings, lectures, training, or other events that require
their attendance at the Employer's premises on what otherwise would have been a
telework day. When management has an immediate need for files located at an
alternative worksite, employees may be directed to return material within 1
business day. In cases of Federal Government closures, employees on their
telework day would be required to continue to work; the Employer, however, would
consider requests for administrative leave if conditions limit an employee's
ability to perform duties.

The
Employer contends that under its proposals, PTO could continue to operate
efficiently and meet the objectives of the telework law, P.L. 106-346, § 359
(October 23, 2000). Allowing employees to have up to 26 non-fixed telework days
a year, with supervisory approval, is preferable from a management perspective
to a regularly scheduled telework day each week, as the Union proposes, because
the work performed by CIO employees typically is unpredictable and requires them
to collaborate, work in project teams, and be available to trouble shoot
problems relating to PTO's automated tools. With respect to this group of
employees, there is a greater need to have them available on-site when crises
arise or immediate customer service is required. Similarly, Finance and
Procurement employees frequently need to meet on-site at PTO headquarters to
collaborate and resolve problems relating to fiscal year deadlines that often
require immediate action to be taken. Furthermore, Finance and Procurement
employees often perform their tasks using computer systems only available
on-site at the Employer's offices. The proposal which allows for intermittent
scheduling of telework days would provide management with the flexibility to
ensure that work which an employee proposes to do on a telework day does not
conflict with the employee's project deadlines, impede collaboration with
co-workers or customer service, and diminish office coverage.

The
Union has failed to provide any persuasive evidence that the Patent Examiner
Telework Agreement, executed in January 2003, does not cover librarians in the
1410 series who work on the patent side of the house. To the contrary, the
negotiators did not intend to exclude those librarians from being covered by the
patent examiner agreement on telework; if the Union disagrees, it will have an
opportunity to reopen the Patent Examiner Telework Agreement in January 2005, at
its 2-year anniversary. In fact, the librarians who work in the Patents Cost
Center are "covered by" the Patent Examiner Telework Agreement, so the
Employer is under no obligation to negotiate to impasse over the matter.
Moreover, as a permissive subject of bargaining which the Employer has elected
not to pursue, the Union cannot legally force the issue to impasse. The portion
of its proposal permitting supervisors to modify the core hours for employees
during a week when they "expect to" telework would provide management
with the flexibility it may need to provide support to customers, some of whom
are permitted to start work as early as 5:30 a.m. and end as late at 10 p.m.
Requiring employees on their telework days to check their voicemail twice daily
- once in the early morning and once midday - would help facilitate
communications between teleworkers and their colleagues, customers and
supervisors, and ensure that the level of services is not diminished when an
employee teleworks.

The
provision mandating that the Employer provide the Union with the names of those
who participate in the NPTP is the same wording used in the Patent Examiner
Telework Agreement, and should serve adequately the Union's need to know the
number of employees who telework. Requiring participants in the NPTP to be at
the GS-13 level or higher, and at the full performance level of their position,
would include 85 percent of "non-patent" employees; most importantly,
it would help to ensure that those who telework have sufficient experience to
perform their work independently. Participants in the NPTP should be required to
meet the criteria recommended by OPM for teleworking (i.e., have the ability to
meet deadlines, successfully plan work production schedules, etc.) because they
establish standards to be used to gauge whether an employee can work
independently without supervision. One business-day advance notice of meetings
to employees in the NPTP requiring their attendance at the PTO site is
reasonable because CIO and CFO employees often work on systems and matters
affecting the entire agency operation that must be resolved quickly. Finally,
its provision that employees on telework continue to work in the event of the
closure of the Federal Government is consistent with OPM guidance that agencies
set their own policies when such circumstances arise. The Employer's willingness
to consider requests for administrative leave when conditions, such as a loss of
electricity, limit an employee's ability to perform duties at the alternate
worksite is reasonable.

CONCLUSIONS

Having
carefully considered the parties' arguments and evidence in support of their
final offers, we conclude that the remaining issues should be resolved in the
following manner. The Panel shall: (1) decline to retain jurisdiction over
whether librarians in the 1410 series who support the Patents Cost Center should
be included in the telework agreement for non-patents; (2) order the adoption of
the Union's proposals: (a) permitting GS-12 employees, at the full performance
level for their position, to participate in the telework program; (b) permitting
employees to combine telework with flexible work schedules, modified to allow
the Employer to change core hours for employees, as necessary, during weeks when
employees are scheduled to telework; (c) requiring the Employer to provide the
Union, on a quarterly basis, with certain information about teleworkers; and (d)
requiring the Employer to follow OPM directives with respect to the status of
teleworkers on days when the Federal Government closes; and (3) order the
adoption of the Employer's proposals on the remaining provisions.

Turning
first to the parties' disagreement over whether librarians in the 1410 series
who work under the Commissioner for Patents should be included in the
non-patents telework agreement, the threshold question raised by the Employer
concerning its obligation to bargain over the Union's proposal because it is
"covered by" an existing agreement must be resolved in an appropriate
forum before a determination can be made as to whether the parties have, in
fact, reached a negotiation impasse.4/
This determination to decline to retain jurisdiction over the Union's proposal
is without prejudice to the right of either party to file another request for
assistance if the underlying threshold question is resolved in the Union's
favor, and an impasse subsequently is reached following the resumption of
bargaining on the substantive issue.

With
respect to the issues at impasse, overall, we are persuaded that a regularly
scheduled telework day for non-patent employees, either weekly or once during a
bi-weekly pay period, as the Union proposes, may impede the Employer's ability
to accomplish work in a timely manner. Unlike patent examiners who work
relatively independently once they have obtained signatory authority, the
employees in question frequently work collaboratively on projects that require
quick turn-around times, on computer systems that are only available at the PTO
site, or in direct support of the business units they service. Accordingly, we
favor the Employer's approach, which permits managers to have greater control
over the scheduling of telework. In addition, the Employer's proposal to follow
the criteria established by OPM on the issue of eligibility would provide
management with better grounds for assessing whether an employee is capable of
working independently in a telework situation. In our view, this is necessary
particularly where, as the Employer states, most "non-patent"
employees assume their positions at the full performance levels.

Furthermore, we find that the Employer's proposals requiring more frequent
checks of office voicemail than proposed by the Union, and that teleworkers have
calls forwarded from their office telephones to their home telephone numbers or,
in the alternative, provide their supervisors and co-workers with a home
telephone number, would better enable employees to maintain communication with
persons at the PTO site and vice versa. Clearly, telephonic and electronic
communications enhance employees' ability while teleworking to stay connected
with events and persons that require their attention. The Employer's proposals
would allow for more effective utilization of those communication methods.
Similarly, we believe it is reasonable for teleworkers to be provided 1-day
advance notice of meetings that require their attendance at the PTO on what
otherwise would have been a telework day. Accomplishing the mission of the
agency should take priority over the personal convenience of a telework day.

With
respect to other provisions, however, the Union's proposals provide the better
outcome. In this regard, we are convinced that the relatively small number of
GS-12 employees who are at the full performance level (top grade) for their
position should be eligible to participate in the telework program because they
are likely to be able to work independently without supervision. In any event,
the Employer would make the final determination on any employee request to
telework and would evaluate such requests by applying OPM's eligibility
criteria. As to whether telework may be combined with flexible work schedules,
there does not appear to be any evidence that such an arrangement would have a
negative impact on the Employer's ability to meet mission requirements. We shall
order a modification of the Union's proposal, however, to require employees who
combine flexible work schedules with telework to adhere to any changes in core
hours that the Employer may need to make. This should help to ensure that
management has the flexibility to address work needs that may arise during weeks
when employees are expected to telework.

Regarding the information to be given to the Union so it can monitor the
Employer's administration of the program, in view of our decision to permit
affected employees to telework only intermittently, we believe management should
be required, on a quarterly basis, to provide the Union with the names,
organizational units and telework dates for those who participate. This should
permit the Union to effectively evaluate the extent of employee participation in
the program and to determine whether the program is being administered fairly.
Finally, with respect to the parties' dispute over work requirements for
teleworkers on days when the Federal Government does not open for business, the
Union contends, and the Employer does not dispute, that in the past management
has not required teleworkers to remain on duty while all other PTO employees
were authorized administrative leave. Adopting the Union's proposal that the
Employer be required to follow OPM "directives" concerning the status
of teleworkers in the event of Federal Government closures should encourage
management to be consistent in the treatment of its teleworkers.5/

ORDER

Pursuant
to the authority vested in it by the Federal Service Labor-Management Relations
Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve
their dispute during the course of proceedings instituted under the Panel's
regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under
§ 2471.11(a) of its regulations hereby determines to decline to retain
jurisdiction over whether librarians in the 1410 series who support the Patent
Cost Center should be included in a telework agreement for
"non-patent" employees.

With
respect to the issues at impasse, the parties shall adopt the Employer's
proposals on all disputed issues, with the following exceptions, where the
Union's proposals shall be adopted: (1) GS-12s at the full performance level for
their position shall be permitted to participate in the telework program; (2)
the Employer shall provide the Union, on a quarterly basis, with the names of
employees who telework, their organizational units, and the number of hours
those employees have worked at alternative sites; and (3) the Employer shall
follow OPM directives concerning the status of teleworkers on days when the
Federal Government closes. In addition, the Union's proposal permitting
employees to combine telework with flexible work schedules shall be adopted,
except that the Employer shall be permitted to change core hours, as necessary,
for employees who combine the two schedules during the weeks when those
employees are expected to telework.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

December 27, 2004
Washington, D.C.

[1]/
Following the parties' exchange of their statements of position to the Panel,
the Union objected to several documents which the Employer had attached to its
submission, arguing that including them in the record of the case would be in
conflict with the instructions given by Member Flores-Hughes to the parties that
all documents must be exchanged prior to or during the informal conference.
While the documents submitted by the Employer along with its post-hearing
statement of position are virtually identical to documents it previously
submitted during the informal conference, the Panel has not considered them
because they have a later computer "run date" than the earlier
documents. Technically, therefore, they do not comply with the Panel Member's
directive.